• by Wendy Davis  @wendyndavis, July 9, 2024

X Corp is urging a federal appellate court to revive a lawsuit against the nonprofit research organization Center for Countering Digital Hate, which issued critical reports about offensive posts on the tech platform.

In March, U.S. District Court Judge Charles Breyer threw out X's lawsuit, ruling that the company, formerly Twitter, brought the case in order to penalize the Center for Countering Digital Hate for its speech. Breyer dismissed the matter under California's anti-SLAPP (strategic litigation against public participation) law, which allows judges to quickly dispose of claims regarding speech about matters of public interest.

X now says it should have been allowed to proceed, arguing that its claims against the Center for Countering Digital Hate were about “data security,” not speech.

“The district court took a wrong turn right out of the starting gate, taking a garden-variety contract- and tort-law case and transmogrifying it into a free speech case subject to California’s anti-SLAPP statute,” X argues in papers filed late last week with the 9th Circuit Court of Appeals.

X sued the Center for Countering Digital Hate last August, soon after the group issued a report that accused the company of failing to remove racist, homophobic and antisemitic comments posted by Twitter Blue subscribers. That report cited several examples, such as the posts “Diversity is a codeword for White Genocide,” and “Trannies are pedophiles.”

X -- which was acquired in 2022 by self-labeled “free speech absolutist” Elon Musk -- alleged that the anti-hate-speech group's reports scared away advertisers.

The complaint included a breach of contract claim based on allegations that the watchdog violated Twitter's terms of service by “scraping” the data that informed the negative reports. The complaint also claimed that the organization violated an anti-hacking law.

The nonprofit urged Breyer to throw out the case at an early stage, arguing that even if the allegations were proven true, they wouldn't support the claims in the complaint. The group added that the allegations centered on “quintessential newsgathering activity,” and should therefore be thrown out under California's anti-SLAPP law.

Breyer agreed with the nonprofit, writing that X brought the case to punish the nonprofit over its criticism “and perhaps in order to dissuade others who might wish to engage in such criticism.”

He also noted that X separately sued the watchdog Media Matters over its reports about content on the platform.

“If there is any question about the 'punishing' part, X Corp. filed a similar suit ... in November of 2023 against Media Matters, another non-profit media watchdog,” Breyer wrote.

X argues on appeal that its claims were based on the nonprofit's “unlawful access to and scraping of X’s data,” as opposed to the group's report.

The platform also claims that the Center for Countering Digital Hate wasn't engaged in “newsgathering,” but in activism. The company writes that its complaint plausibly alleged that the nonprofit “is an activist organization that wrongfully accessed X’s data, scraped that data, and manipulated that data, all with the goal of damaging X’s commercial interests -- not to report the news.”

The nonprofit hasn't yet filed a response with the 9th Circuit.